Federal Civil Procedure

1. PERSONAL JURISDICTION – jurisdiction over the parties in the state. Must

satisfy a state statute and due process under the constitution.

a. Long Arm Statutes – Used to assert a state's jurisdiction over non-

residents. (2 types)
i. General – permit a state court to exercise jurisdiction over any party

as long as it is constitutionally permissible.

ii. Enumerated – Narrow and provide that only certain acts will warrant

jurisdiction.
b. In Personam – Jurisdiction over the person based on contacts with the

forum state
i. Traditional Basis
1. Consent,
2. Personally Served with process within the state, (if not tricked

or forced into forum) or

3. Domiciled within the state.
ii. Minimum Contacts – “Whether the D has such minimum contacts

with the forum so that exercise of jurisdiction does not offend

traditional notions of fair play and substantial justice”

1. Contact – There must be a relevant tie between the D and the

forum state.
a. Purposeful Availment – “Purposely availed himself to the

benefits and protections of the forum state”

i. i.e. trying to make money, using roads, causing effect

in state.
ii. Internet – Interactive websites are sufficient, passive

websites are not.

b. Foreseeablity – “Reasonably likely to be hauled into court

there”
2. Fairness – “fair play and substantial justice”
a. Relatedness between the contact and plaintiff’s claim.
i. Specific – Does P’s claim arise from the D’s contact

with the forum state?

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 1. IF so only minimal contacts are required.
2. D can only be sued there for a claim arising

from those activities

ii. General – Does P’s claim NOT arise from D’s contact

with the forum state?

1. IF so need continuous, substantial and

systematic contacts with the forum. (i.e. doing

business, domicile, incorporation)

2. D can be sued there for a claim that arose

anywhere in the world

b. Convenience – The forum is OK unless it puts D at a

severe disadvantage in the litigation. (very hard

standard to meet)
c. State’s Interest – In providing the forum to its citizens
c. In Rem –A court possesses the power to determine the status of property

within its state with respect to all possible interest holders in that property.
d. Quasi In Rem – Proceeding against a person based on the presence of that

person's property within the state. Modernly must meet a minimum

contacts analysis.
i. Note – Jurisdiction is limited to the amount of property.

2. SUBJECT MATTER JURISDICTION (Power over the CASE)

a. Diversity of Citizenship
i. Citizens of different states (or a citizen of a state and a foreign

state)
1. Complete Diversity – P can’t be from same state as any D
a. Natural Person – Based on State of Domicile
i. Domicile – (1) Physical presence (2) with subjective

intent to remain. (Determined at the time of filing –

citizenship before or after doesn’t matter) (Can only

have 1 domicile)
b. Corporations – Up to 2 citizenships
i. State of incorporation AND
ii. Principle place of business (ONLY 1)

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 1. Nerve center test – where decisions are made

(headquarters)
c. Resident Aliens – Based on aliens current state of domicile
d. Unincorporated Associations – (Partnership, LLC) use

citizenship of EVERY member

e. Legal Representative of Decedents, Minors, Incompetents

– Look to their citizenship, NOT the citizenship of the

representative.
ii. Amount in Controversy Must EXCEED $75,000
1. Good Faith Test – Based on the good faith allegations of the P

unless it appears to a legal certainty that she cannot recover

more than $75,00 not including interest or cost of litigation (i.e.

statutory ceiling on recovery)

a. What the P actually wins is irrelevant to determine

jurisdiction.
b. However, if the P wins $75,000 or less the P may have to

pay D’s litigation costs. (Not including attorneys fees)

2. Aggregation
a. 1 P v. 1D – Can aggregate ANY claims related or unrelated
b. Joint Tortfesors – Use the total value of the claim
c. Cannot aggregate multiple P’s claims against a single D
3. Injunctions – Jurisdictional amount is satisfied if either the gain

to P or the cost to D exceeds $75,000.

iii. EXCLUSIONS – Federal courts will NOT hear cases involving divorce,

alimony, child custody, or probate.

b. Federal Question – The P must be enforcing a federal right that “arises

under” a federal law OR P’s right to relief must require a resolution of a

substantial question of federal law.

i. Well pleaded complaint rule – The federal question must appear on the

face of P’s "well pleaded complaint.” (NOT in a defense or counter

claim)
c. Supplemental Jurisdiction (Test every claim – Counterclaim, Crossclaim,

etc...)
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 i. *Diversity and Fed Q get you into federal court. SJ may permit an

additional claim that does not meet the original jurisdiction

requirements. Only works if case already in fed ct.

ii. Common Nucleus Test – The claim must share a common nucleus of

operative fact with the claim that invoked diversity or federal

question.
1. CNOF is met by claims that arise out of the same transaction

or occurrence.
2. Fed Q – The court may hear a related state claim by any party.
3. Diversity – Permits D’s to adjudicate related counterclaims,

crossclaims, and impleaders.

a. Note – NO diversity is needed with parties D brings in
iii. Limitation – In diversity cases, the P may not use supplemental

jurisdiction to overcome a lack of diversity. (But D can!)

1. Note: P can use supplemental jurisdiction to overcome lack of

diversity for a claim in a federal question. P can also use

supplemental jurisdiction to overcome a lack of amount in

controversy.
iv. Discretion – Court has discretion NOT to hear the supplemental claim

if:
1. The federal question is dismissed early in the proceedings
2. The state law claim is complex
3. State law issues would predominate

d. REMOVAL – Allows DEFENDANTS to remove (“transfer”) a case from state

to federal court.
i. 6 RULES
1. Only D’s can remove (ALL D’s MUST agree)
2. In Diversity cases NO removal if D is a local D. (citizen of the

forum)
3. A D who files a permissive counterclaim in state court waives

his right to remove. (NOT for compulsory claims)

4. Must have original subject matter jurisdiction for the Federal

Court

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 5. Which court? Can only be removed to the federal district court

embracing the state court which the case was originally filed
6. When? D has 30 days from service of the document that first

made the case removable (Usually service of process)

7. In diversity cases NO removal more than 1 year after the case

was filed in state court.

ii. Procedure
1. D files Notice of removal in federal court stating:
a. Grounds for removal,
b. Signed by the parties under Rule 11,
c. Attach all documents served on D in state action,
d. Copy to ALL adverse parties.
2. Then file copy of notice in State Court.
iii. Remand – If removal is improper federal court can remand to state

court.
1. P must move to remand within 30 days of removal, but if there

is no SMJ then the P can remand anytime.

2. When a removable claim is joined with one or more non-

removable claims, the entire case may be removed. The federal

court in its discretion, may remand all matters in which state law

predominates.

e. ERIE DOCTRINE
i. Issue: the question will be whether the court must apply state law on

some issue
ii. General Rule – In a diversity case, federal court MUST apply state

substantive law and Federal procedural law.

iii. Step 1 – Is there a Federal Law on point that directly conflicts with

State Law? If so, APPLY the federal law, as long as it is valid.

1. Ex. FRCP, FRE, Statutes, Constitution.
2. Note – FRCP is valid if it is arguably procedural (Has never been

held invalid)
iv. Step 2 – If there is NO federal law on point ask if it is one of the areas

that has already been determined. Court has clearly determined

four areas to be substantive: (1) Elements of a claim or defense, (2)

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 statute of limitations (3) rules for tolling statute of limitations, (4)

conflict or choice of law rules.

v. Step 3 – If NO federal law on point and it has not been clearly

determined, apply the following 3 tests and come to a reasonable

conclusion.
1. Outcome Determinative – Would applying or ignoring the state

rule affect the outcome of the case? If so, apply the state law.
2. Balance of Interests – Does either the federal or state system

have strong interests in having its rule applied?

3. Avoid Forum Shopping – If the federal court ignores the state

rule, will it cause parties to flock to federal court? If so, apply

state law.
3. VENUE – Determines which district court is proper
a. Local Action – Actions regarding ownership, possession, or injury to LAND

MUST be filed in the district where the land lies.

b. If it is not a local action, it is a Transitory Action – In a transitory action

(diversity or FQ) P may have venue in any district:

i. Where ALL D’s reside
1. *Special Rule – in cases where all D’s reside in different districts

of the same state, P can lay venue in the district in which any of

them reside.
ii. Where a substantial part of claims (events or omissions) occurred
1. Resides
a. Humans – Reside where they are domiciled.
b. Corporations – Reside in EVERY district where they were

subject to personal jurisdiction when the case was filed.

i. i.e. Ford resides in every U.S. district

c. Aliens – may be sued in any district (But you still need PJ)

d. Unincorporated Associations – Determined by looking to

the residence of the association itself, not its individual

members

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 c. Transfer of Venue – In the Interest of Justice the court MAY transfer to

any district in which the case Could have been filed.

i. Could – A district w/ proper venue, personal jurisdiction and

subject matter jurisdiction

ii. Interest of Justice – Court will balance both public and private

interests.
1. Public – Burdened of jury service, protecting citizens, what law

should apply
2. Private – Convenience or parties and witnesses, location of

evidence
iii. The court to which case is transferred under this statute applies the

choice of law rules of original court

iv. If venue in original district is improper, court may transfer in the

interests of justice or dismiss.

d. Forum Non Conveniens – If there is a far more appropriate court

elsewhere (within a separate judicial system, foreign country), a court may

dismiss or stay the action to let P sue D there.

i. Requires a very strong showing of private and public interests to

dismiss or stay.
ii. Does not matter that P may recover less in the other court.
iii. Almost never granted if P is a resident of the present forum.
4. SERIVCE OF PROCESS
a. Notice – Notice must be given that is reasonably calculated under all

circumstances to apprise interested parties of the pendency of an action.

b. Service– ANY non party over the age of 18, must deliver to D: (2 things)
i. Summons – formal court notice of suit and time for response
ii. Copy of the Complaint
1. Note – Process server does not have to be appointed by the

court.
iii. Serve within 90 days of filing the case or case dismissed without

prejudice (not dismissed if P shows good cause for delay in serving)

c. Process
i. Personal Service – given to D personally ANYWHERE in the forum

state
1. Ex. Ballpark, tennis court
ii. Substituted Service – Delivery to a:
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 1. Usual place of Abode, AND
2. Left with Competent Person who resides there
a. Competent – suitable age and discretion
iii. Service on D’s Agent – Process can be served on D’s agent if receiving

service is within the scope of the agency. (i.e. corporations registered

agent, managing agent or officer, or agent appointed by contract)

iv. State Law – Any methods permitted by state law where the federal

court sits or where service is effected.

v. Waiver by Mail – Written waiver is valid if mailed to D by first class

mail, postage prepaid, and the D returns within 30 days.

1. The D only waives service and nothing else. (i.e. not PJ or

venue)
2. If the D does not return the waiver form and fails to show good

cause to for failure to return the waiver form, the D must pay the

cost of service.
d. Out of State – Process delivered out of state is valid if the forum’s state

law allows such service (i.e. long-arm statute)

e. Immunity from Service – D is immune from instate personal service if he is

in-state to be a witness or party in another civil case.

f. Other Documents – For subsequent papers, i.e. answer, motions, discovery,

serve the documents by delivering or mailing the documents to the party’s

attorney or pro se party. If mailed add 3 days for any required response.

5. PLEADINGS – Documents setting forth the claims or defenses. Federal

a. Rule 11 Sanctions – Requires attorney, or pro se party, to SIGN all

pleadings, written motions and papers. (Except DISCOVERY documents)

i. Certifying – By signing the person is certifying that to the best of

her knowledge or belief, after reasonable inquiry:

1. The document is not for an improper purpose
2. Legal contentions are warranted by law (or non frivolous

arguments for law change), AND

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 3. Factual contentions and denials of factual contentions have

evidentiary support (or are likely to after further

investigation.)
ii. Continuing Certification – The certification is effective every time the

position in the document is presented to the court (i.e. at signing,

filing, and later oral advocating)

iii. Discretion – Court has discretion to impose sanctions against the

attorney, firm or party in order to DETER a repeat of bad conduct in

the future.
iv. Inherent Power – Remember the court has inherit power to sanction
v. Monetary and Non-monetary – Sanctions can be non-monetary

(striking a pleading, reprimanding the attorney)

1. Monetary sanctions are paid to the court, not the other party.
vi. Procedural Due Process – Before imposing sanctions, a court must give

the party a chance to be heard.

vii. Sua Sponte – Court may raise rule 11 sanctions sua sponte (on its own)
1. Court does not have to provide the 21-day safe harbor provision

(only required if a party is bringing the motion)

viii. Objective standard – An objective standard is used for judging

conduct. A lawyer may not avoid sanctions with a “pure heart and an

empty head.” However, an attorney may rely on the reasonable

representations of the client.

ix. Safe Harbor Provisions – A Rule 11 motion for sanctions may not be

filed until 21 days following service. Gives counsel time to withdraw

or correct the allegations.

1. If another party violates Rule 11, remember that a party must

give this 21 day to fix the problem before filing the motion.

Cannot file immediately.

b. COMPLAINT – Principal pleading by the P. Filing commences an action.

i. Requirements (3)
1. Short and plain statement of the claim, showing entitlement

to relief
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 2. Demand for Judgment
3. Statement of the grounds establishing subject matter

jurisdiction
ii. Short and plain statement of the claim, showing entitlement to relief
1. Notice Pleading – Need to plead sufficient facts to support a

plausible claim. (Not just a possible claim)

2. Special Matters – Fraud, mistake and special damages must

be plead with particularity or specificity

a. Heightened pleading for fraud or mistake.
b. Special damages are damages that are special to that P.

(those that do not normally flow from an event)

c. Must plead the who, what, where, when, why
iii. Verified Pleadings – May be required by specific statute. Must be

signed under penalty of perjury by the party. Can be treated as

affidavits.

c. Defendant’s RESPONSE – Rule 12 requires D to respond (1) by motion, or

(2) by answer. To avoid default, D must do either within 21 days after

being served with process.

i. Rule 12 Motions – Note pleadings but rather a request for a court

order.
1. Issues of Form
a. 12(c) – Motion for judgment on the pleadings
b. 12(e) – Motion for a more definite statement (i.e.

pleading is so vague that D cant form a response)

c. 12(f) – Motion to strike (i.e. strike immaterial things in

pleadings, e.g. demand for jury when no right exists)

i. Any party can bring a motion to strike
2. Rule 12(b) Defenses
a. 12(b)(1) – Lack of subject matter jurisdiction
b. 12(b)(2) – Lack of personal jurisdiction
c. 12(b)(3) – Improper venue
d. 12(b)(4) – Insufficiency of process (problem w/ summons or

complaint)
e. 12(b)(5) – Insufficient service of process

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 f. 12(b)(6) – Failure to state a claim upon which relief can be

granted. (i.e. Even if everything you allege in your

complaint is true, no legal liability attaches to the D)

g. 12(b)(7) – Failure to join an indispensible party
h. May be raised by motion or in the answer.
i. Waivable – 12(b) 2,3,4,5 are waivable. They must be put

in the FIRST rule 12 response (motion or answer) or else

they are waived.

i. Lack of SMJ is never waived, and can be raised for

the first time after trial or on appeal.

ii. Answer – It is a pleading
1. Timing – Serve within 21 days after service of process.
a. If D made a Rule 12 motion, and it is denied, she must

serve her answer within 14 days after the court rules on

the motion.
b. If D waived service, she has 60 days from the P’s mailing

of waiver form.
2. Respond to Allegations
a. Admit, Deny, Deny on lack of information or belief –

“without knowledge or information sufficient to form a

belief as to the truth”

b. CanNOT deny on lack of information or belief if the

information is public knowledge or is in D’s control.

c. NOTE – Failure to deny or improper denials can

constitute an admission on any matter except damages

3. Raise Affirmative Defenses – D must include any defense he

intends to raise. (Ex. SOL, Stature of Frauds, res judicata, self

defense, assumption of the risk)

a. Basically say “even if I did all the things P says, P still

cannot win”
b. NOTE – Failure to plead affirmative defenses risks

waiver of being able to raise the defense at trial if proper

objection is made
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 4. Counterclaim – Claim against an opposing party
a. Compulsory – An answer MUST state any claim against an

opposing party IF it arises out of the same transaction

or occurrence as P’s claim.

i. i.e. Must be filed in the pending case or it is waived.
ii. Note – This is the only compulsory claim in federal

court
iii. SMJ – Will have supplemental jurisdiction over

compulsory counterclaims.
b. Permissive – An answer MAY state any claim against an

opposing party if it does NOT arise out of the same

transaction or occurrence as P’s claim.

i. i.e. may assert it in another action
ii. Remember – Need SMJ over EVERY claim
5. Crossclaim – Claim against a co-party
a. A pleading may file a cross claim against ANY party that

arise out of the same transaction or occurrence as P’s

claim.
b. Note – NEVER compulsory crossclaims
c. Remember – Need SMJ over EVERY claim

iii. Amending the Pleadings

1. Plaintiff may amend his pleadings:
a. As a matter of Course – Once before a responsive pleading

is filed.
b. With leave of court OR written consent of opposing party –
i. After a responsive pleading is filed, a pleading may

be amended with leave of court if “justice so

requires.” Courts will consider prejudice, delay

and futility of amendment.

c. Timing – If P amends, D must respond within 14 days OR

the amount of time remaining on his 21 days, whichever

is longer.
2. Defendant has a right to amend once within 21 days of serving

his answer.
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 3. Variance – When the evidence at trial does NOT match what

was pleaded, P may move to amend the pleadings after the

introduction of the varying evidence or at the end of trial to

reflect what was tried UNLESS D objects to the introduction of

varying evidence.
a. If D property objects, the varying evidence is inadmissible

because it is at “variance with the pleadings.”

4. Relation Back – Amendment after the SOL has run
a. Join a New Claim – Amended pleadings relate back if they

concern the same conduct, transaction or occurrence

as the original pleading.

i. “Relation Back” – means you treat the amended

pleading as though it was filed when the original was

filed, so it can avoid the SOL problem

b. Change a D – Amended pleadings will relate back if:
i. Concerns the same conduct, transaction or

occurrence as the original pleading,

ii. The new D knew of the action within 90 days of its

filing, and
iii. The new party knew or should have known that, but

for a mistake, she would have been named

originally.
1. “Mistake” means the naming of an incorrect

party not an unknown party

iv. Applies when the P sued the wrong D first, but right

D knew about it.

6. DISCOVERY
a. Scope
i. Standard – Can discover anything relevant to any claim or defense

and proportional to the needs of the case [<- standard as of

December 2015]

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 1. Relevant – “within the scope of discovery as defined [by rule

26].” and can include inadmissible evidence; i.e., Discovery is

broader than admissibility

2. Proportionality requires a consideration of the importance of the

issues at stake in the action, the amount in controversy, the

parties’ relative access to relevant information, the parties’

resources, the importance of the discovery in resolving the

issues, and whether the burden or expense of the proposed

discovery outweighs its likely benefit.

ii. Privilege – Privileged evidence is NOT discoverable.
1. Must object to discovery request with particularity stating

privilege
2. Work Product – Material prepared in anticipation of litigation by

a party or party’s representative is generally NOT

discoverable.
a. Exception – May be discoverable with (1) substantial

need, AND (2) NOT otherwise available

b. Absolute Protection – (1) mental impressions, (2) opinions,

(3) conclusions, (4) legal theories.

b. Required Disclosures – this material must be produced even though no

one asks for it.

i. Initial Disclosures – Must be made within 14 days of the mandatory

meet and confer conference. (DDINE)

1. Documents and electronically stored info used to support a

claim,

2. Computation of Damages,

3. Insurance

4. Names of witnesses,

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 5. Expert witnesses who may be used at trial and their reports

a. Reports containing compensation, opinions, data used,

qualifications

b. Consulting experts names and opinions are not

discoverable absent exceptional need. (i.e. expert retained

in anticipation of litigation but will not testify)

ii. Pretrial Disclosure – No later than 30 days before trial, must give

detailed information about trial evidence, including documents an

identity of witnesses to testify live and by deposition.

c. Discovery Devices – May not be used until after the mandatory meet and

confer conference unless court order or stipulation allows.

i. Depositions – A deposition is an oral proceeding permitting an

attorney to examine ANY person under oath regarding the subject

matter of the lawsuit.

1. Parties – Notice of the deposition properly served is sufficient to

compel attendance.
a. If requested to produce documents a 30 day notice is

required.

2. Nonparties – must be subpoenaed to be compelled to attend. A

subpoena duces tecum will compel a nonparty witness to bring

documents with her.

a. Non party cannot be compelled to travel more than 100

miles

3. Business – May require a business to designate a person most

qualified for the deposition.

4. 10 Deposition Limit per “side” even if there are multiple Ds

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 a. Leave of court or stipulation of parties permits more

depos..

5. One day of Seven hours limitation per deposition witness

6. Phone and Video depositions are permitted.

7. May not depose the same person twice without court approval
8. Use at Trial
a. The deposition of any party may be used for ANY purpose

by ANY adverse party.

b. The deposition of a nonparty may ONLY be used if the

witnesses is unavailable at trial

ii. Interrogatories –Written questions to a PARTY to be answered in

writing under oath.

1. Timing – A party has 30 days to respond with answers or

objections.

2. 25 Interrogatory limit – Absent a stipulation or court order.

3. Duty to Investigate – Can say you don’t know the answer only

after a reasonable investigation.

4. Option to Produce Records – When answer could be found in

records but it would be equally burdensome to find it.

5. Use at Trial – May be used against the answering party but

NOT by the answering party as this would be self-serving.

iii. Production of Documents or Things – Request to party (or non-

party with subpoena duces tecum) that she make available for review

and copying, various documents or things, including electronically

stored information, or permit entry onto designated property for

inspection.
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 1. Timing – Must respond within 30 days of service stating that the

material will be produced or objection.

a. Note – The actual production occurs thereafter at the time

and date specified by the attorney

2. Subpoena duces tecum – used to obtain documents from non-

parties

iv. Physical or Mental Examination – Only available through court

order on a showing that a PARTY’s health is (1) in actual

controversy, and (2) Good cause (i.e. you can’t get it elsewhere)
1. Note – May also order an exam of a person in party’s control e.g.

child

2. Exchange of Written Reports – The person examined is entitled,

on request, to receive a copy of the report. If the examinee

demands such a report, the party causing the examination is

entitled, upon request, to like reports of ANY examination

previously or thereafter made of the same condition.

v. Request for Admission – A request by one PARTY to another PARTY

to admit the truth of any discoverable evidence.

1. Authenticate Documents – Often used to authenticate

documents. If it is a copy of the document must be sent with the

RFA.
2. Timing – Must respond within 30 days of service.
3. Failure to Deny or Respond – Automatic Admission from failure

to deny or respond. (Can amend if failure is NOT in bad faith)

4. Response – may admit, deny, or indicate a lack of information

only if you indicate you’ve made a reasonable inquiry.

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d. Rule 26 Certification – Parties sign substantive answers to discovery under

oath certifying:
i. It is warranted,
ii. Not imposed for an improper purpose, AND
iii. Not unduly burdensome
1. Remember rule 11 does NOT apply to discovery

e. Duty to Supplement – A party has the duty to amend an incomplete or

incorrect response or amend an originally correct response that has

become incorrect because of newly discovered information.

i. Must supplement initial disclosures, interrogatories, RFA’s, or requests

for the production of documents or things.

f. Discovery SANCTIONS
i. Protective Order – Permits the court to limit, condition, or delay

discovery upon a showing of "good cause" to protect a party from

annoyance, embarrassment, oppression or undue burden or

expense.
ii. Partial Violation – Receiving party answers some discovery and

unlawfully objects to others. (3 steps to sanctions)

1. Meet and Confer – Parties have a duty to meet and confer in

order to try to resolve the dispute before seeking court orders.

2. Motion to Compel – May get an order compelling the party to

answer the unanswered questions plus costs (including

attorney’s fees) for bringing the motion.

3. Sanctions – If the party violates the order to compel, the party

may bring a motion for sanctions, AND the party could be held

in contempt for violating the order (except no contempt for

violating an order for a medical exam)

iii. Total Violation – Fails completely to respond to a discovery request or

attend a deposition. May immediately bring a motion for sanctions.

No need to file a motion to compel.

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 iv. Available Sanctions – A party seeking sanctions must certify to the

court that he tried in good faith to get the information without court

involvement.
1. Monetary Sanctions

2. Issue Establishment order (Establishes facts as true)

3. Issue Preclusion (as to issues regarding the discovery)

4. Striking the pleadings of disobedient party (as to issues

regarding the discovery)

5. Dismissal, or Default (ONLY if bad faith shown)

6. Expenses and Fees (including attorney’s fees) for bringing the

motion

7. COMPLEX CASES
a. Permissive Party Joinder – a party MAY join a person as a co- P or D if:
i. The right to relief arises out of the same transaction or occurrence
ii. There is at least one question of law or fact common to all parties

joined

1. Must have SMJ and PJ over every party.

b. Necessary and Indispensible Parties

i. Necessary – A party is necessary “if feasible”:

1. Complete relief CANNOT be accorded in his absence OR,

2. A judgment may impair or impede his ability to protect that

interest (harm to absentee) OR

3. May expose a party to multiple or inconsistent obligations.

4. Other Notes:

a. Joint Tortfeasors – are NOT necessary parties

b. If Feasible – There is PJ and SMJ over the necessary party.

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 ii. Indispensible – If joinder of the necessary party is not feasible the

court may either proceed without him or dismiss the case. In making

this decision the court will balance:

1. Whether there is an alternative forum available
2. What is the actual likelihood of prejudice
3. Whether the court shape relief to avoid prejudice

4. Whether a judgment rendered in the person’s absence will be

adequate.

a. Note – Party is indispensible if the court decides to dismiss

the case.

iii. Hint: Joinder rules start with “C” – counterclaim, crossclaim – claims

between present parties. Claims that start with “I” involve joining

someone new to the case.

c. Impleader (aka Third-Party Practice) – D MAY join any person who is or

may be liable to P's claim against D. (indemnity or contribution)

i. Jurisdiction – Must have PJ over impleaded parties but the court will

have SMJ through supplemental.

ii. Timing – Right to implead w/in 14 days after serving answer or after

that w/ ct. permission

iii. Note – Once properly joined any party may sue anyone as long as SMJ

over each claim

iv. Note – There are no compulsory impleaders.

d. Intervention – Absentee who wants to join a pending suit must make a

timely application.

i. Intervention as a matter of right

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 1. Applicants interest may be impaired or impeded, AND

2. That interest is NOT adequately represented by existing

parties.

a. Example – Co-owners in land when land is the subject of

the lawsuit.

b. Must have proper SMJ

ii. Permissive Intervention (Court has discretion)

1. Common question of law or fact AND

2. Allowing intervention will NOT unduly delay or prejudice

the original case.

a. Example: Hippies

b. Must have proper SMJ

e. Interpleader – Stakeholder forces all potential claimants into a single

lawsuit to avoid multiple or inconsistent judgments. Note – Stakeholder can

also be a claimant

i. Rule Interpleader (Rule = Regular)

1. Diversity Requirement – Complete diversity between

stakeholder and claimants.

2. Amount in Controversy – Greater than $75,000

3. Service of Process – treated as a regular lawsuit

4. Venue – treated like a regular lawsuit

ii. Statutory Interpleader

1. Diversity Requirement – Diversity between ANY two claimants.

(Stakeholders citizenship is irrelevant)

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 2. Amount in Controversy – $500 or more

3. Personal Jurisdiction – Nationwide (No minimum contacts

required)

4. Venue – Any district where any claimant resides.

f. CLASS ACTION – Representative sues on behalf of class members

i. Initial Requirements (CANT – must meet ALL)

1. Numerosity – So numerous that joinder of all members would be

impractical.

2. Commonality – At least one questions of law or fact are common

to the class.

3. Typicality – Representatives claims / defenses are typical of

those in the class

4. Adequacy of Representation – Representative will fairly and

adequately represent the class

a. Note – Court may cure "inadequate representation"

problems by appointing a number of representatives,

lawyers, or creating subclasses.

ii. Must fit in ONE of three categories

1. Prejudice – Class treatment is necessary to avoid harm either to

class member or to party opposing the class. (i.e. limited

fund)

2. Injunction or Declaratory Relief – (Not damages) - If the entire

class requests injunctive relief. (i.e. employment discrimination /

toxic dumping in river)

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 3. Damages – When the (1) common questions of law and fact by

the class predominate over individual differences, AND (2) the

class action is superior method to handle the dispute. (i.e. Bus

crash / cigarette mass tort)

a. Opt Out Notification (Damages) – For a damages class

actions the court must notify all reasonably identifiable

class members of their right to:

i. Opt Out of the class action,

ii. If they fail to opt out they’ll be bound by the

judgment, AND

iii. They can enter a separate appearance through

counsel

1. Note – The class representative pays to give

notice

iii. Certification

1. Court must determine at an early practicable time whether to

certify the case to proceed as a class action. If the court certifies

the class it must define the class and the class claims, issues or

defense

a. Class counsel must fairly and adequately represent the

interest of the class.

iv. Settlement and Dismissal – Settlement and dismissal of class claims in

a certified class requires court approval. The court will give notice to

the class of the potential settlement or dismissal and receive feedback.

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 1. Damages Class action – the court must give the class a 2nd

chance to opt out

v. Subject Matter Jurisdiction

1. Federal Question – The most common basis given the 75k

threshold in diversity

2. Diversity – Only focus on the Class Representative. (i.e. class

rep must be diverse from all Ds and the amount of the reps claim

must exceed 75k)

3. Class Action Fairness Act – Valid Jurisdiction if:

a. 100 Class members aggregate their claims to reach 5

million

b. Any one P is diverse from any one D

c. Red Carpet Removal – One D can remove, and a local D

can remove..

8. PRETRIAL ADJUDICATION
a. Voluntary Dismissal – A P can voluntarily dismiss as a matter of right

before an answer or motion for summary judgment is filed by filing a written

notice of dismissal.
i. Only One without prejudice – A party can dismiss once without

prejudice. (P can re-file case) A second dismissal operates as an

adjudication on the merits. (with prejudice)

b. Involuntary Dismissal – May be allowed on court order for failing to

comply with the FRCP or any court order.

i. On the Merits – Operates as a finding on the merits unless it is based

on lack of PJ or SMJ, improper venue, or failure to join an indispensible

party.
c. Default / Default Judgment
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 i. Default – Notation by the court clerk on the docket upon a showing

that the D failed to respond within 21 days after being served. (60

days if waived service)

ii. Default Judgment by Clerk – The clerk of the court may enter

judgment if:
1. D made NO response at all
2. The claim itself is for a SUM CERTAIN in money,
3. Claimant provides an affidavit (sworn statement) of the sum

owed
4. D is NOT a minor, incompetent, or in the military
iii. Default Judgment by Judge – If any of the 4 elements are not met the

judge will hold a hearing to have the parties PROVE UP the damages.
1. Notice – D will only get a 7 day notice if he made some

appearance in the case.

2. Amount – The default judgment may not exceed the amount in

the pleadings. (This is different if the case goes to trial where the

D can recover more or different damages then stated in their

pleadings)
iv. Set Aside Default – The court may set aside a default “for good cause

shown” within 1 year for excusable mistake, neglect or fraud.

d. 12(b)(6) Failure to State a Claim – Even if everything you allege in your

complaint is true, no legal liability attaches to the D.

i. The court will ONLY look at the sufficiency of P’s complaint
ii. P’s compliant can also show on its face that there is a complete

defense
iii. Aka – Motion for Judgment on the Pleadings
iv. P will usually be given leave to amend if granted.

e. Summary Judgment – Summary judgment shall be granted when:

i. There is no genuine issue as to any material fact, AND
ii. The moving party is entitled to judgment as a matter of law
1. i.e. when no reasonable person could find for the nonmoving

party.
2. Evidence – Motion is based on the pleadings, affidavits,

discovery and other authenticated documents (Whole record)

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 a. Note – affidavit – sworn statement made under penalty of

perjury.
b. Note – Unverified Pleadings AND Inadmissible

Hearsay is NOT evidence (Can’t rely on your pleadings /

hearsay)
3. The court generally views the evidence in light most favorable to

the nonmoving party.

4. Court will NOT weigh the evidence or judge credibility of

witnesses.
iii. Burden Shifting – If D moves for summary judgment showing P’s cause

of action lacks merit, or P moves for summary judgment showing

there is NO defense to the cause of action, the burden shifts to the

opposing party to demonstrate that a triable issue of fact exists.

f. Motion for a Judgment on the Pleadings

i. Either party may make a motion for judgment on the pleading after the

complaint and the answer have been submitted.

ii. Judgment on the pleadings will be granted if the information of the

face of the pleadings alone reveals that the movant is entitled to a

judgment as a matter of law.

9. CONFERENCES
a. Mandatory Meet and Confer – Lawyers are to meet least 21 Days before

the scheduling conference, to discuss claims, defenses and settlement. Must

form discovery plan and present it to the court in writing within 14 Days.

b. Scheduling Conference – The court enters an order scheduling cut-offs for

joinder, amendment, motions, etc.

c. Pretrial Conference – The court may hold pretrial conferences as needed

to expedite the case and foster settlement. Final pretrial conference

determines issues to be tried and evidence to be proffered. Recorded in

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 pretrial conference order that basically supersedes the pleadings. It may be

amended to prevent manifest injustice.

i. The final pretrial conference order is an important document – it is a

roadmap of issue to be tried, evidence to be presented at trial,

witnesses, etc. (allows no surprises at trial)

ii. If not in the final pretrial order – it is not allowed in.

d. Alternative Dispute Resolution – Each court has an ADR program, aimed

at reducing case congestion. Courts may require parties to arbitrate their

disputes prior to trial.

i. Note – Party who receives an offer to settle and refuses and receives

less on the judgment will have to pay the other parties fees.
ii. Contractual Arbitration – when parties agree in writing to arbitrate it

is binding

10. TRIAL
a. Jury – Decides questions of FACT, and are instructed on the law by the

judge.
i. Right to a Jury Trial – The 7th amendment (which ONLY applies in

Federal Court) preserves the right to a jury in civil actions at LAW, but

NOT in suits in EQUITY.

1. Hybrid Claim – There is a right to a jury trial on all facts

underlying the claim at Law, but NO right to a jury trial on the

Equitable claim.
a. Note the claim at LAW will be decided first and the claim

in equity will be left to the judge.

2. Demand – Must demand in writing, no later than 14 Days after

service of the last pleading raising issues triable to a jury.

3. Number – Minimum 6 Jurors, maximum of 12 (6 must be

unanimous)
a. No alternate jurors in federal court – all participate unless

excused for good cause.

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 ii. Voir Dire – In the jury selection process (“voir dire”) each side has

Unlimited strikes for cause (e.g. bias, prejudice, related to the

parties). Each SIDE also gets THREE peremptory challenges that

may be used for any reason other than discrimination based on race or

gender.

11. DISPOSITION Without Trial

a. Motion for Judgment as a Matter of Law – The court may grant a JMOL

where reasonable people could not disagree as to the result.

i. Effect – takes the case away from the jury

ii. When? – After the other side has been heard at trial.

1. D can move twice – once at close of P’s evidence and at close of

all evidence.

2. P only at the close of evidence.

iii. Court must consider the evidence in the light most favorable to the

non-moving party.

b. Renewed Judgment as a Matter of Law – Same standard as JMOL but

occurs after the verdict.

i. i.e. If granted, the jury reached a conclusion reasonable people could

not have reached.

ii. The motion must be made within 28 days after entry of judgment.
iii. Prerequisite – A motion for JMOL made at an appropriate time during

trial is a prerequisite to bring a renewed JMOL. (If you didn’t bring a

JMOL you can’t bring a renewed JMOL)

c. Motion for a New Trial – Judgment entered but serious errors at trial

require a new trial.

i. Timing – Within 28 days after entry of judgment.
ii. Grounds

1. Errors in law – wrong evidentiary ruling, jury instructions.

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 2. Newly discovered evidence – That couldn’t have been

discovered with due diligence for the original trial.

3. Attorney, Third Party or Jury Misconduct

4. Verdict is against clear weight of evidence

5. Excessive or Inadequate Damages

d. Additur / Remittitur – A federal court may grant a new trial unless a party

accepts a remittitur.
i. Remittitur – When jury awards a large figure that shocks the

conscience the court can order a new trial or offer remittitur which

gives the P the choice of taking a lesser figure (which the court sets)

or go through a new trial.

ii. Additur – When the jury awards a low figure that shocks the

conscience the court can order a new trial or additur which gives the

D the choice of paying a greater amount in damages (which the court

sets) or go through a new trial.

1. Note – Additurs are NOT allowed in federal courts because they

are considered unconstitutional as violating a P’s right to a jury

trial under the 7th amendment.

e. Motion to Set Aside Judgment – On motion, the court may relieve a

party from judgment if:

i. Newly discovered evidence – That couldn’t have been discovered

with due diligence for a new trial motion

ii. Mistake, Excusable Neglect

iii. Clerical Error

iv. “Any other reason that justifies relief.” – Only to be used in

extraordinary circumstances, e.g. counsel’s gross negligence

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12. APPELLATE REVIEW
a. Appeal – In Federal Court a litigant appeals from federal district courts to

the U.S. Court of Appeals

i. Final Judgment Rule – Can only appeal from final judgments, which

means the trial court has made an ultimate decision on the merits of

the entire case.

1. i.e. nothing is left for the court to do on the merits but execute

the judgment
2. Note – Grant of motion for a new trial is NOT a final judgment

because the trial court must still hear the new trial and decide it

on its merits.
ii. Timing – Must file notice of appeal in trial court within 30 days after

entry of final judgment

iii. Interlocutory (NON Final Review) – Following are appealable with no

final judgment.

1. Multiple Claims and Parties – The trial court may enter a

partial final judgment on one claim or to one party which is then

appealable.

2. Collateral Orders – A matter may be appealed if it is collateral

to merits of the case that is too important to be denied review.

(i.e. claim of immunity)

3. Injunctions / Attachments – May review an order granting,

continuing, modifying, or refusing to grant an injunction or

attachment.

4. Interlocutory Appeals – An interlocutory appeal may be

permitted by leave of court if:

a. Trial judge certifies that,

b. It involves a controlling issue of law or fact,

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 c. As to which there is a substantial difference of opinion,

and

d. The Court of Appeals agrees to hear it,

i. Ex. granting or dismissing a collateral motion.

5. Extraordinary Writ – If an order is not otherwise appealed, the

aggrieved party may seek a Writ of Mandamus (to compel a

lower court to do something the law requires) or a Writ of

Prohibition (to stop a lower court from doing something that

law does not allow). (Not technically an appeal)

a. Party seeking writ must demonstrate:

i. That she will suffer irreparable harm if the writ is

not issued
ii. The normal route of appeal from final judgment is

inadequate
iii. Has a beneficial interest in the outcome of the

writ proceeding
6. Class Action – Court of appeals has discretion to review an

order granting or denying certification of class action.

a. Timing – Must seek review within 14 days of entry of

order.
iv. Standards of Review: the standard of review is the amount of

deference given by one court (or some other appellate tribunal) in

reviewing a decision of a lower court or tribunal.

1. Abuse of discretion: Where a lower court has made a

discretionary ruling (such as whether to allow a party claiming a

hardship to file a brief after the deadline or many evidentiary

rulings), that decision will be reviewed for abuse of discretion.

a. It will not be reversed unless the decision is “plain error.”

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 2. Clearly erroneous: Under the “clearly erroneous” standard,

where a trial court makes a finding of fact, such as in a bench

trial, that finding will not be disturbed unless

a. the reviewing court is left with a “definite and firm

conviction that a mistake has been committed” by that

court
3. Substantial Evidence: A finding of fact from a jury is upheld on

appeal unless it is unsupported by substantial evidence.

4. De novo: Under de novo review, the appellate court acts if it

were considering the question for the first time, affording no

deference to the decisions below.

a. Applied to legal decisions of a lower court on questions of

law
5. Harmless error: A harmless error is a ruling by a trial judge that,

although mistaken, does not meet the burden for a losing party

to reverse the original decision of the trier of fact on appeal, or

to warrant a new trial.

a. Often applies to challenges to evidentiary rulings

13. CLAIM / ISSUE PRECLUSION – Whether a judgment already entered

precludes litigation of any matters in another case.

a. What Law Applies – The law of the system that decided the earlier case

(federal or state)
b. Affirmative Defenses – Claim and issue preclusion are affirmative defenses,

so they should be raised in your answer or motion or they will be waived.

c. CLAIM Preclusion – Based on the premise that you only get to sue on a

cause of action (or claim) once to vindicate all your rights to relief.
i. Requirements:
1. Same Claimant Against the Same Defendant – Case 1 and

case 2 were brought by the same person against the same

person.
2. Judgment was Valid, Final and On the Merits
a. Final – If the case is being appealed is it a Final Judgment?
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 i. Federal – YES
b. On the Merits – ALL judgments are on the merits UNLESS

based on:
i. Jurisdiction (Personal and Subject Matter)
ii. Venue
iii. Indispensible Parties
3. Same Cause of Action (or Claim)
a. ALL claims arising out of the same transaction or

occurrence.

d. ISSUE Preclusion – Precludes re-litigation of a particular issue that has

been previously litigated and determined.

i. Requirements
1. Judgment was Valid, Final and On the Merits in case 1
2. Same issue was Actually Litigated and Determined in case 1
3. The Issue was Essential to the Judgment in case 1– Without

the issue the judgment is case 1 would have been different.

4. Against a Party (or their privies) – The issue may only be used

against someone who was a party to case 1. (Required by Due

Process)
a. Privies – successors in interest, class representatives in a

class action.
5. May be used by Whom? (NOT required by Due Process)
a. Mutuality – Traditional View (Minority) – Only by a Party

or his privy
b. Non-Mutual – The modern rule is that a Non-Party may

preclude a party from re-litigating an issue.

ii. Offensive and Defensive Use of Prior Judgment

1. Defensive – When D-2 seeks to prevent P from re-litigating a

claim lost to D-1.

2. Offensive – When P-2 seeks to prevent D from re-litigating an

issue lost to P-1.

a. Non-parties may use Offensive if: (Factors used to

determine by court)
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 i. That party had Full and Fair opportunity to litigate

the issue,
ii. Multiple lawsuits were foreseeable,
iii. Unavailable in the first action, (could not have

joined) AND
iv. NO inconsistent judgments on record.

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